The Supreme Court’s decision backing South Carolina’s effort to defund Planned Parenthood vindicates the federalist ideal of the states as the laboratories of democracy. That phrasing, made famous by Justice Louis Brandeis, celebrates the idea of states adopting creative approaches to tackle contentious questions. Contrast that flexibility with monolithic, one-size-fits-all diktats imposed by the federal leviathan.
In the case of the Palmetto State, the policy in question emerged in 2018, when Governor McMaster ordered a halt to state Medicaid payments to clinics that provide abortions. “Payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life,” he said. Liberal critics balked that the policy was illogical because the Medicaid funds “could not be used for abortions,” as the Guardian explains it.
That criticism overlooks a basic law of economics — the fungibility of money. Since cash is an interchangeable commodity, the money’s use cannot be limited once it’s handed over to an organization for any reason. No wonder, then, that Mr. McMaster sought to prevent South Carolinian taxpayer dollars from being used, even indirectly, to underwrite abortions. The goal, he said, is “to protect the sanctity of life and defend South Carolina’s authority and values.”
A similar ethical logic undergirds the so-called Hyde Amendment, first enacted by Congress in 1977 at the behest of Congressman Henry Hyde of Illinois. That legislation, which has remained on the books in varying forms since then, bars the use of federal taxpayer dollars to pay for most abortions — with exceptions for “pregnancies that endanger the life of the pregnant person or that result from rape or incest,” as health policy analysts KFF report.
Yet Planned Parenthood chose litigation to reverse the state bar on tax dollars going to the organization. Seven years later, the high court, in Medina v. Planned Parenthood South Atlantic, vindicates the governor’s démarche — and clears the way for other states with qualms about abortion to make similar moves. The six to three ruling rejects arguments that the policy breached the rights of Medicaid enrollees to seek medical services at Planned Parenthood.
Where did the idea emerge that anyone enrolled in Medicaid has a right vouchsafed in federal law or the Constitution to pick a particular medical provider? The argument is based on a Reconstruction-era law, vintage 1871, that lets individuals sue government officials who constrain their “rights, privileges, or immunities secured by the Constitution and laws.” The measure was designed to help insure compliance with the 14th Amendment.
Yet it strikes us as a reach to apply such a law to Planned Parenthood, as Justice Neil Gorsuch explains in his opinion for the majority. “Federal statutes do not confer ‘rights’ enforceable under” the 1871 law “as a matter of course,” he reckons. “That is particularly true of statutes, like Medicaid, enacted pursuant to Congress’s spending power.” This power lets Congress “offer funds to States that agree to certain conditions.”
Yet it’s a stretch, Justice Gorsuch and the majority contend, to say that a fine-print proviso in the Medicaid law creates an individual “right.” The statute makes no such claim. It merely requires states to allow “any individual eligible for medical assistance” to “obtain” care from providers “qualified to perform the service.” The Constitution “does not expressly endow Congress with the power to regulate conduct” via spending, writes Justice Gorsuch.
Justice Clarence Thomas adds in a concurrence that “conditional spending legislation does not itself ‘secure any rights.’” The attempt by Planned Parenthood to use the 1871 federal law as a cudgel to change South Carolina’s policy, Justice Thomas adds, is a reminder that the Reconstruction-era “statute has exceeded its original limits.” The law is being misused, he suggests, in lawsuits contesting “state actions that have little or nothing to do with” civil liberties.
Which brings us back to Justice Brandeis, who in a 1932 dissent wrote in defense of an Oklahoma business regulation that “it is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory.” He touted the right of the states to innovate “without risk to the rest of the country.” After the ruling in Medina, one can imagine Brandeis, from the great judicial beyond, signaling his concurrence.
(Except for the headline, this story has not been edited by PostX News and is published from a syndicated feed.)
